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Jek v Lcyp

Judgment Cited authorities 16 Cited in Precedent Map Related
Vincent
Judgment Date08 May 2015
Year2015
Judgement NumberHCMP468/2015
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP468/2015 JEK v. LCYP

HCMP 468/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 468 OF 2015

______________________

IN THE MATTER OF P AND S
AND
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ORDINANCE (CAP. 512)
AND
IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

______________________

BETWEEN
JEK Plaintiff
and
LCYP Defendant

______________________

Before: Hon B Chu J in Chambers (Not Open to Public)
Dates of Hearing: 27 April 2015
Date of Judgment: 8 May 2015

________________

JUDGMENT

________________

Introduction

1. The application before the court was for the return of two children to the jurisdiction of New Jersey, USA under the Child Abduction and Custody Ordinance Cap 512 and pursuant to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“Convention”). The application was made by the father of the children.

Background

2. The mother of the two children was born and grew up in Hong Kong (“Mother”). The father was born in Brooklyn and grew up mainly in the New Jersey area of the United States (“Father”). The Father is now 43 years of age, and the Mother is 42. They met in 1994 in Hong Kong and married in September 1997 in New Jersey. After their marriage, the Mother relocated to New Jersey where the parties set up home. The Mother acquired US citizenship in about February 2004.

3. There are two children of the family, both boys, and they were born in New Jersey. The elder one P is now 14 years old, and the younger one S is 10 (collectively “Children”).

4. It was not disputed between the parties that the family continued to live in New Jersey until the Mother moved to Hong Kong with the Children on about 6 July 2013[1], agreed by the Father (“Move”). What was disputed was whether the agreement for the Move was meant to be for a temporary period of 1-2 years or not.

5. After the Move, the Mother entered into a lease and purchased a car in Hong Kong, and the Children were enrolled into a prestigious international school here. In about December 2013, the Mother said she discovered that the Father was having an affair and on 17 April 2014, she issued divorce proceedings in the Family Court of Hong Kong, namely FCMC 4880 of 2014 (“FC Proceedings”). This was followed by the Father issuing divorce proceedings in New Jersey on 30 May 2014.

6. On 9 June 2014, the Father issued a summons in the FC Proceedings for declarations that, among other things, the court in Hong Kong had no jurisdiction over the divorce and for all the proceedings issued by the Mother be set aside and/or stayed, or alternatively, the court should not exercise any jurisdiction and the FC Proceedings be stayed on ground of forum non conveniens.

7. The Father’s above summons resulted in a judgement handed down on 16 January 2015 by Judge Melloy, who came to the conclusion that the court in Hong Kong had no jurisdiction over the Mother’s divorce proceedings because neither the Father nor the Mother was domiciled in Hong Kong at the date of the Mother’s divorce petition, nor did either of them have a substantial connection with Hong Kong at that time (“FC Judgment”)[2]. The divorce proceedings in the Family Court were then stayed.

8. The Mother applied for leave to appeal to the Court of Appeal, but such application was dismissed by Judge Melloy on 23 March 2015[3]. The Mother then applied to Court of Appeal for leave and after the hearing, this court was informed that leave had been granted for the Mother to appeal against the FC Judgment.

9. After the FC Judgment, on 28 January 2015, the Father’s New Jersey attorneys wrote to the Mother’s New Jersey attorneys stating that it was agreed between the parties that the Children would remain in Hong Kong “on a limited, temporary basis not to exceed 1 to 2 years and that the 2 year term will expire at the conclusion of the Children’s school year ie in June 2015”, and seeking the Mother’s response as to whether she intended to honour the parties’ agreement to return the Children to New Jersey in June 2015[4].

10. This led to the Mother issuing an originating summons in the Family Court on 4 February 2015 under the Guardianship and Minors Ordinance Cap 13 for joint custody, sole care and control of the Children and for the Children not to be removed from the jurisdiction of Hong Kong save with consent or leave of court (“GMO Application”). The GMO Application was supported by the Mother’s affirmation dated 6 February 2015 (“GMO Affirmation”)[5].

11. The Father relied on what was said by the Mother in her GMO Affirmation to be the Mother’s wrongful retention of the Children in Hong Kong. The Father issued the originating summons herein on 26 February 2015 seeking an order that the Children be returned forthwith to New Jersey.

12. It was the Father’s case that the Children had repeatedly expressed to him that they wanted to return to the United States, and upon his application, this court directed that a Social Investigation Report be prepared in relation to the views of the Children (“SIR”)[6]. The Children indicated their wish to remain in Hong Kong. I will consider the views of the Children in detail later in this judgment.

The applicable provisions of the Convention in these proceedings

13. Article 3 of the Convention states as follows:

“The removal or the retention of a child is to be considered wrongful where –

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

14. Article 5 then states –

“ For the purposes of this Convention-

(a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

(b) ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.”

15. Article 13 states that –

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.”

Disputed Issues

16. The disputed issues posed by Mr Pang, Senior Counsel appearing for the Mother, and agreed by Mr Coleman, Senior Counsel for the Father, were:

(i) Were the Children habitually resident in USA within the meaning of the Hague Convention on 4 February 2015 when the Mother instigated the GMO Application?

(ii) Did the Mother’s GMO Application constitute a wrongful retention of the Children with the meaning of the Hague Convention?

(iii) Should the court refuse the order sought by the Father in view of the wishes of the Children not to move back to USA?

17. At the hearing, Mr Coleman had clarified that what the Father relied on as being the act of retention by the Mother of the Children in Hong Kong was the Mother’s filing of her GMO Affirmation and what was stated therein and thus the date of the alleged date of retention should be 6 February 2015 and not 4 February 2015, which was the date of the filing of the GMO Application.

18. One of the issues raised by Mr Pang on behalf of the Mother was whether the Father’s present application was “premature”, in that the 1-2 year period of stay in Hong Kong agreed by the Father had not yet expired when the Father took out the present application, and that his application was based on an “anticipatory” retention.

19. The terms of “removal” or “retention” are not defined in the Convention. It had, however, been said by the US Court of Appeals for the First Circuit in Toren v Toren 191F 3rd 23 (1999) (1st Cir), that there must be an initial determination as to whether there had been a removal or retention before any inquiry could be made into whether such removal or retention was wrongful[7]. The US Court of Appeals was of the view that the lower court in that case had jumped the gun by addressing the issue of the children’s habitual residence prior to making the threshold determination as to whether there had been any retention of the children at all within the meaning of the Convention[8].

20. In...

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